AFSPA: A Draconian Law or a necessary evil?

Mathematicians have used sandwich theorems to define the boundaries of a function. A similar analogy can be devised for the people of Kashmir and those belonging to the North-Eastern states. For decades they have been sandwiched between the violence prompted by extremist elements and atrocities of the armed forces, all due to a piece of legislature known as the Armed Forces Special Powers Act or AFSPA.

Provisions of the Act

AFSPA was passed by the Parliament in 1958 and was subsequently enforced in all the seven sister states of the North-East. Later on, in 1990, it was extended to Jammu & Kashmir – due to the rising insurgency in the area. The act gives legal immunity to the armed forces, when they undertake measures to quell violent protests in a “disturbed region.” An officer is entitled to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area, prohibiting the assembly of five or more persons or carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.” It is entirely on the Centre and the state governments to decide whether an area should be declared as ‘disturbed’ or not.

The Controversy

To a layman, AFSPA indeed sounds like awarding the ‘Right to Kill’ to our armed forces. But it is the contents of the act that are flawed and misty. Firstly, it makes no distinction between a peaceful gathering of five or more people and a berserk mob. So, even innocents – who have no role in creating a situation that results in that region being called ‘disturbed’, also come under the purview of the law.

Secondly, the law also states that, “no prosecution can be initiated against an officer without the previous sanction of the Central government”. Purportedly, the logic behind the inclusion of this section is, to protect the officers from frivolous and misguided allegations. The government is usually not very fluid in giving this much-needed sanction, in order to express their faith in the armed forces and protect their interests.

Thirdly, the decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. This has been the heart of the problem. As the recent situation in Kashmir seems to go out of hand, leaders have now suggested that the act must be repealed from certain provinces – citing the reason that the imminent threat, due to which AFSPA was enforced in that province in the first place, has been neutralized over the years. Certainly, the reasoning is specious – it is nothing more than a tactic to appease the population and pacify their agitated sentiments. If the threat has indeed been neutralized, then why not declare the region as ‘not disturbed’, which will by itself conclude the role of the army?

Situation on Ground

Unquestionably, there have been killings and human rights violation, in both Kashmir and the North-East, as a direct result of AFSPA. But the opinions are mixed. The Joint Chiefs have repeatedly reasserted that even partial revocation of AFSPA will greatly curtail the freedom of the army, to carry out operations. According to them, a soldier deserves all the legal protection he can get, for the result of any action/decision he takes on the spot, acting in the best interests of the situation. While the politicos, as said earlier, are bent upon diluting AFSPA and scoring some political brownie points.

More than 80 civilian deaths have been reported in Kashmir, since June 11. While on the other hand, the North-East has been the victim of this state of play for the past 52 years. Instances of mass killings of people and custody deaths, like that of Th. Manorama, have been catalyzing the protests. Irom Sharmila has been fasting, for over a decade, demanding the annulment of AFSPA from Manipur and other parts of the North-East. But evidently her pleas seem to land on deaf ears.

The Way Forward

It will be unfair to entirely blame the army for the situation we are in today. A far greater blame lies on the Centre and the respective state governments. On his visit to Assam in 2006, Prime Minister Manmohan Singh assured the people of the North-East – of replacing AFSPA by a more humane law. The Justice Jeevan Reddy Committee, appointed for the same, recommended the complete repeal of AFSPA from the North-East. But the present situation broadly highlights the poor progress made, in this regard.

The army is only called in when the situation is serious enough and the state law enforcement forces are unable to handle the crisis. The precious time, during which the army takes the affairs into its own hands i.e. when AFSPA is in force, should be totally utilized in strengthening the state police forces. This will enable them to discharge their own duties of maintaining law and order in the region, by themselves, as soon as possible. But sadly, the government today finds AFSPA a convenient tool to hide their poor advancement, in fortifying and upgrading the state police machinery. Until and unless these basic issues are addressed, it will be farcical to remain optimistic.

Vishal Tripathi

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